Before 1985 there was little consideration given to consultations until a landmark case in that year (R v London Borough of Brent ex parte Gunning). This case sparked the need for change in the process of consultations when Stephen Sedley QC proposed a set of principles that were then adopted by the presiding judge. These principles, known as Gunning or Sedley, were later confirmed by the Court of Appeal in 2001 (Coughlan case) and are now applicable to all public consultations that take place in the UK.
1. When proposals are still at a formative stage
Public bodies need to have an open mind during a consultation and not already made the decision, but have some ideas about the proposals.
2. Sufficient reasons for proposals to permit ‘intelligent consideration'
People involved in the consultation need to have enough information to make an intelligent choice and input in the process. Equality Assessments should take place at the beginning of the consultation and published alongside the document.
3. Adequate time for consideration and response
Timing is crucial – is it an appropriate time and environment, was enough time given for people to make an informed decision and then provide that feedback, and is there enough time to analyse those results and make the final decision?
4. Must be conscientiously taken into account
Think about how to prove decision-makers have taken consultation responses into account.
The risk of not following these principles could result in a Judicial Review. A number of public bodies across the UK have been taken to Judicial Review and deemed to have acted unlawfully in their Public Sector Equality Duty – usually linked to the four Gunning Principles.